TMI Blog1960 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs, 17,500/- and the net compensation to which he is entitled has been assessed at ₹ 6,000/-odd. 4. All these petitioners obtained loans from the State Government for one or more of the following purposes, namely: 1. For the purchase of tractors, seed, bullocks, and houses; or 2. for repairs to houses; or 3. for construction of houses; Or 4. for sinking of tubewells or wells etc. These loans were advanced to them under the provisions of the Land Improvement Loans Act (No. 19 of 1883) and the Agriculturists' Loans Act (No. 12 of 1884). Both of these Acts are Governor-General's Acts and as such Central Acts passed long before the bifurcation of the legislative powers between the Centre and the provinces and later on the States. These laws have been saved by the Constitution Acts that have been passed from time to time and fall within the category known to the Constitution of India as the Existing Laws . Section 4 of both of these Acts sets out the purpose for which loans may be granted, while Section 6 in the 1883 Act deals with the period for repayment of the loans and Section 7 with the recovery of loans and it is only necessary to mention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1954) -- hereinafter called the Act -- and particularly on Section 30 of the Act, which prohibits arrests for the recovery of sums due under the Act. The petitioners' case is that these loans are public dues as defined in Section 2(d) of the Act and according to the scheme and the provisions of the Act are now sums recoverable under the Act and therefore in view of Section 30 of the Act, the petitioners cannot be arrested. 8. On the other hand, the contention of the State is that these sums are not sums due under the Act, but are sums due under the Land Improvement Loans Act (No. 19 of 1883) and the Agriculturists' Loans Act (No. 12 of 1884) and as such can be recovered as arrears of land revenue and the petitioners can be arrested. It is further contended that even if these loans are held to be sums due under the Act the jurisdiction to legislate about them is within the exclusive legislative field of the State and therefore the Act so far as it bars arrest for recovery of the loans would be outside the competence of the Union Legislature and would, to that extent, be ultra vires. In support of these contentions, number of arguments have been advanced, which will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) * * * d) * * * e) the amount, if any, of the public dues recoverable from the applicant; f) * * * g) * * * Section 7 provides for the determination of compensation and for the deduction of public dues from the amount of compensation and is in these terms: 7(1) * * * (2) On ascertaining the amount of compensation to which an applicant is entitled under Sub-section (1), the Settlement Commissioner shall deduct therefrom the following dues recoverable from the applicant, in the order of priority mentioned below: (a) the amount, if any, of the public dues recoverable from the applicant under Section 5; b) * * * c) * * * (3) After deducting the dues referred to in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises whether a sum is payable to the Government or to the Custodian within the meaning of Subsection (1) in respect of any property referred to therein, it shall be referred to the Settlement Commissioner within whose jurisdiction the property is situated, and the Settlement Commissioner shall after making such enquiry as he may deem fit and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question; and the decision of the Settlement Commissioner shall, subject to any appeal or revision under this Act, be final, and shall not be called in question by any Court or other authority. (3) For the purpose of this section, a sum shall be deemed to be payable to the Custodian, notwithstanding that its recovery is barred by the Indian Limitation Act, 1908 (9 of 1908), or any other law for the time being in force, relating to limitation of actions. deals with certain sums to be recovered as arrears of land revenue. Section 30, which is in these terms: 30(1) No person shall be liable to arrest or imprisonment in pursuance of any process issued for the recovery of any sum due' under this Act which is recoverable as an arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensation; (k) * * * (l) * * * (m) * * * * (n) * * * (o) * * * (3) All rules made under this section shall be laid for not less than thirty days before both Houses of Parliament as soon as possible after they are made and shall be subject to such modifications as Parliament may make during the said period of thirty days. Rules under Section 40 have been framed and were placed for 30 days before the Houses of Parliament as required by Sub-section (3) of Section 40 and thereafter were given effect to. Chapter II of the Rules lays down procedure for submission of compensation application and determination of public dues. Rule 7 deals with the determination of public dues in the case of persons holding verified claims. An enquiry for the determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme, he may pass an order transferring the property allotted to the allottee in permanent ownership as compensation and shall also issue to him a sanad in the form specified in Appendix XVII or XVIII as the case may be with such modifications as may be necessary in circumstances of any particular case granting him such rights: Provided that the amount of public dues outstanding against the allottee shall be a first charge on the property transferred to him and shall be payable by him in four equal annual instalments, failing which the amount shall be recoverable as arrears of land-revenue. Such charge shall also be enforceable against the successor-ininterest of the original transferee or the person to whom the property has been subsequently transferred, as the case may, and the person concerned shall be deemed to have acquired the property subject to such charge. (3) ** * * (4) ** * * (5) ** * * 73(1). Where the allottee has a verified claim in respect of prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable against the successor-in-interest of the Original transferee or the person to whom the land has been subsequently transferred, as the case may be, and the person concerned shall be deemed to have acquired the land subject to such charge. (ii) to transfer to the allottee in permanent ownership, less area than originally allotted to him unless the allottee is prepared to pay for the excess area either in cash or by adjustment against the compensation payable to him in respect of his verified claim for any urban property or rural building; or (iii) to cancel the allotment. (4) A copy of every order under Sub-rule (3) shall be supplied free of cost to the allottee. The Sanads required to be issued by the Settlement Officers under this rule but actually issued by the Managing Officers before the 28th February, 1958, shall be deemed to be as valid, as if they were issued by Settlement Officers. The forms of the sanad granted under these rules are prescribed in Appendices XVII and XVIII. In both these forms, Clause 2(ii) is identical and only need be noticed for the present purposes. It is in these terms:-- 2(ii) Any loan made to the transferee or his predecessor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctionary, Third Edi tion, the word 'due' as an adjective is stated to mean:-- (1) That is owing or payable, as a debt. Due (substantive): 1. That which is due; a debt, 2. That which is due to any one legally or morally. 3. That which is due by any one. 4. A legal charge, toll, tribute, fee, or the like. In Wharton's Law Lexicon, Fourteenth Edition, its meaning is stated to be: anything owing. That which one contracts to pay or perform to another; that which law or justice requires to be paid or done. It should be observed that a debt is said to be 'due' the instant that it has existence as a debt; it may be payable at a future time. In Words and Phrases, Permanent Edition, Vol; 13 (West Publishing Co.), various shades of mean-ing of the word 'due' are given and I am only setting out a few of them to illustrate the variety of uses to which the word 'due' has been put:-- Page 437. The word 'due' has a variety o meanings, depending on the connection in which it is used. It has been defined generally to be that which is owed; that which custom, statue, or law required to be paid. Page 446. ''The word 'due&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that construction to a particular expression which will be more consistent with the suppression of the mischief rather than that mischief being allowed to continue uncontrolled. (See Walchandnagar Industries Limited v. Ratanchand Khimchand (AIR 1953 Bom 285) : 55 Bom LR 236. 15. Keeping in view the rules, laid down in the aforesaid decisions and the scheme and the purpose of the Act, the argument of the learned Deputy Advocate General that the word 'due' only means 'owed' and not 'payable' must be repelled. In Section 30 of the Act, the words 'sums due under this Act' would also cover 'sums payable under this Act' or even 'sums recoverable under this Act', and in that rase they need nut necessarily be 'owed' in the technical sense in which the learned Deputy Advocate General wants the word 'due' to be interpreted. In my view the words 'payable' and 'due' in this Act have been used synonymously. If the interpretation, which I have placed on the 'sums due under this Act is not placed, it would defeat the very purpose and object of the Act and would lead to absurdity. There are no sums due under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it having a wider connotation than the phrase 'State dues'. It cannot be urged with any reasonableness that 'State dues' would not be 'sums recoverable under this Act. So this contention also fails. 18. Having realised the futility of this argument, the learned counsel for the State raised another similar argument. He contended that the sums for the recovery of which the petitioners are sought to be arrested are due under the Rules made under this Act and as such cannot be said to be 'sums due under this Act' for they are only due under the Rules. This argument he sought to support by reference to Sections 14 : 17 : 20 and 30 of the Act. wherein it is stated thai. subject to the provisions of this Act and the Rules made thereunder such and such result would follow. And as Section 30 is not so framed, therefore, the Rules are excluded. There is two-fold answer to this argument. In the first instance, if Section 10 of the Act is read with the Rules and the appendices, then these loans must, in fact, be held to be recoverable under the Act because the transfer of the property is subject to such terms and conditions as may be prescribed and those terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer and the lender. It would not be proper to hold in favour of such an amendment in the absence of express words to that effect in Section 30 or in the absence of any such indication in the Act or the rules made thereunder. It is also my opinion that Rules 72 and 73 merely create another mode of payment which the parties may adopt but without affect-ing rights and liabilities existing under the terms on which the loans were granted. It will be noticed from these observations that the word 'due' has been interpreted as meaning 'owing'. The learned Judge was of the view that only an alternative mode of payment was provided and that would not mean that the debt became due under the Act, It cannot be disputed that the Act provides for the recovery of debts due under enactments other than the Act and brings about by operation of law a totally new relationship between the debtor and the creditor. Moreover, the word 'due' is not confined to merely as being 'owing' as has already been noticed, and therefore with due deference to the learned Judge there is no justification for holding the word 'due' as merely meaning 'owing'. 20. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That is bound to happen in a legislation of this type and the sole lest in such cases where a conflict of jurisdiction of two legislatures arises is whether the impugned legislation is in pith and substance a legislation within the competence of the legislative authority enacting the same. If it is in pith and substance such a legislation, it must be held to be valid even though it trenches to some extent on the exclusive field of another legislature, in this case the State field, in subsidiary and ancillary matters. In this connection, reference may be made to a decision of the Privy Council in Prafulla Kumar v. Bank of Commerce Ltd. AIR 1947 PC 60 and also to Shantilal Vadilal v. State of Bombay. AIR 1954 Bom 508. The decision in Prafulla Kumar Mukherjee's case AIR 1.947 PC 60 was relied upon by the Supreme Court in D. N. Banerji v. P. R. Mukherjee 1953 SCR 302: [AIR 1953 SC 58), wherein the following observations occur:-- This invasion of the provincial field of legislation does not however render the Industrial Disputes Act of the central legislature invalid, as we have to pay regard primarily to the pith and substance of the challenged Act in consider ing the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil in Tennant v. Union Bank of Canada 1894 AC 31 24. There is another way of looking at the matter. The provisions of 1883 and 1884 Acts are general provisions while the provisions of Section 30 of the Act are special provisions. Therefore Section 30 of the Act, which provides for special circumstances, must prevail over the general provision. See in this connection the decisions in British Columbia Electric Railway Company Ltd. v. Stewart 1913 AC 816 and Hall v. Arnold (1950) 2 KB 543 as well as Maxwell on the interpretation of Statutes, Tenth Edition, at page 168:-- A later Act which conferred a new right would repeal an earlier right if the co-existence of such right would produce Inconvenience, for the just inference from such a result would be that the legislature intended to take the earlier right away. This passage fully applies to the situation brought about by the enactment of Section 30 of the Act as against the provisions of the earlier two existing Indian Laws . As I have already said, there is no State law on the subject and there are only the existing Indian laws and those laws were enacted by the predecessor-in-interest of the Central Legislature and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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